United States v. Jeremy Powell ( 2019 )

Case: 18-11050 Document: 00515200813 Page: 1 Date Filed: 11/15/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 18-11050 November 15, 2019
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee Cross-Appellant
v.
JEREMY GLENN POWELL,
Defendant-Appellant Cross-Appellee
Appeals from the United States District Court
for the Northern District of Texas
USDC No. 3:17-CR-511-1
Before KING, GRAVES, and WILLETT, Circuit Judges.
PER CURIAM: *
Jeremy Glenn Powell pleaded guilty to possession of a firearm by a felon
in violation of 18 U.S.C. § 922(g)(1) and was sentenced under 18 U.S.C.
§ 924(a)(2) to 120 months of imprisonment and three years of supervised
release. On appeal, he challenges the district court’s calculation of his
guidelines range and its determination that his prison sentence should run
consecutively to the undischarged portion of his prior federal sentence. The
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 18-11050 Document: 00515200813 Page: 2 Date Filed: 11/15/2019
No. 18-11050
Government cross-appeals, arguing that the district court erred by refusing to
treat Powell’s prior Texas robbery convictions as violent felonies under the
Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), which carries a
minimum 15-year term of imprisonment.
Although the district court declined to apply the ACCA based on our
earlier decisions, we recently held that a Texas conviction for “robbery-by-
injury” under Texas Penal Code § 29.02(a)(1) “categorically requires the use of
physical force” and that a conviction for “robbery-by-threat” under Texas Penal
Code § 29.02(a)(2) “likewise requires the attempted use, or threatened use of
physical force.” United States v. Burris, 920 F.3d 942, 948 (5th Cir. 2019)
(internal quotation marks and citation omitted). Accordingly, and as conceded
by Powell, Texas robbery is a violent felony under the ACCA. Id. at 944-45; see
§ 924(e)(2)(B)(i). In addition, Burris rejected Powell’s arguments regarding
whether the application of the recent decisions on the ACCA’s force clause
violates fair warning principles. Burris, 920 F.3d at 952-53; see also United
States v. Gomez Gomez, 917 F.3d 332, 334 (5th Cir. 2019), petition for cert. filed
(U.S. July 19, 2019) (No. 19-5325).
Because Powell’s two robbery convictions qualify as violent felonies
under the ACCA, we VACATE his sentence and REMAND the case to the
district court for resentencing in light of Burris. That being so, we do not
address Powell’s arguments. See United States v. Akpan, 407 F.3d 360, 377
n.62 (5th Cir. 2005).
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